3rd Independent Police Complaints Authorities Network (IPCAN) Conference “Respecting fundamental rights and freedoms in the context of strengthening the fight against terrorism”
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It is a pleasure to be here this morning and to open the third conference of the Independent Police Complaints Authority.
Monsieur Toubon, as the Rights Defender, your decision to establish and promote the Independent Police Complaints Authorities Network (IPCAN) is very welcome.
Today, police forces across our member states – and far beyond – are grappling with the challenge of preventing terrorism, and doing so in a way that upholds the rights and freedoms that earmark healthy democracy.
And not just police forces, of course, but governments and other law enforcement agencies too.
It is vital that this challenge is met.
Failure to protect citizens against the scourge of terrorism puts their lives in danger, undermines public trust in institutions, and fuels populism and xenophobia.
But failure to respect those same citizens’ legal safeguards exposes them to a different danger: the arbitrary abuse of power.
So, these challenges must not be played off against one another.
Let’s be clear: the State has the right to employ its full arsenal of legal weapons to repress and prevent terrorist activities.
That must not lead, however, to indiscriminate measures that deny the fundamental values any State seeks to protect.
For a country to react in such a way would be to fall into the trap set by the terrorists themselves.
Our Court has therefore sent unambiguous warnings to member states that have attempted to combat terrorism by illegal and arbitrary means.
It outlawed some outrageous practices, like extraordinary rendition: a procedure that is “anathema to the rule of law”.
The Council of Europe as a whole shares this view.
Fighting terrorism by means of the rule of law is the only way to preserve the legitimacy of the State’s action and its continued acceptance by citizens in the long term.
So our task is to help our member states ensure that their laws comply with their domestic and international obligations.
Defeating terrorist ideologies, preventing terrorist attacks, bringing perpetrators to justice with laws that are clear, precise and foreseeable.
Those found guilty of violating these rules should be prosecuted and sentenced, in full respect of human rights standards.
But while the rule of law is a timeless principle, the nature and scale of today’s terrorist threat is not.
You know as well as anyone that terrorism is dynamic and fast-changing.
So we need to ensure that our enduring principles operate on the basis of sharp new thinking.
At present, three member states of the Council of Europe have made derogations from their obligations under the European Convention on Human Rights.
They have used Article 15 of the Convention, which allows them to do so in the case of public emergency threatening the life of the nation.
And they have done this in response to the terrorist threats that they have faced.
This is understandable.
But, equally, it is undesirable.
Three member states, with a combined population of over 190 million citizens, consider that they are living through a public emergency threatening the life of the nation.
This means one in four of all persons living in Europe does not enjoy the full protection of the Convention.
We have known Article 15 derogations before, but never on this scale.
So I am pleased that President Macron has said publicly that he does not intend to renew the French state of emergency laws.
And I acknowledge what he told me personally: namely that he intends that France’s new anti-terrorism laws should be passed and implemented in conformity with the Convention and case law from the Court.
But I remain concerned that so many citizens are finding themselves in this invidious position.
We must look for ways to avoid the necessity.
We must use modern tools to tackle current trends.
Today, the real terrorist threat in Europe is inspired largely by the ideology propagated by jihadist groups such as Al-Qaida and Daesh.
Their methods have now become increasingly low-cost and primitive.
Renting and driving vans and trucks to kill costs less than acquiring and manipulating explosives.
So police forces need to find new solutions – shortening response times, improving risk assessment and so on – and at the Council of Europe we are doing our own thinking on how to do this best.
There is a technological aspect too.
As the starting point for research, planning and engaging with others, the internet and social networks provide not only the genesis of many terrorist plans, but also host the digital trails that can foil them.
Following these has become indispensable.
That is why we have reviewed and updated the Committee of Ministers recommendation of 2005 on “special investigation techniques” in relation to serious crimes including acts of terrorism.
The updated recommendation adds definitions for “cyber investigation” and “financial investigation” and makes them subject to the same guidelines.
This recommendation is a significant, modernising step and was adopted earlier this summer.
It ensures that we continue to set a global benchmark.
But of course it is only part of a broader picture.
National laws and international co-operation are always at risk of falling behind new trends in crime and terrorism.
Flexibility, co-operation and the effective exchange of good practice are the means for keeping up.
And implementation is key.
In 2005, the Council of Europe adopted the Convention on the prevention of terrorism.
For the first time, this criminalised the public provocation to commit terrorism, recruitment and training for terrorist purposes and a series of other offences, including participating as accomplice, organising and directing others and other contributory acts.
Notably, it also criminalised attempts to recruit or train others for terrorism.
In force since 2007, the convention has now been ratified by 38 member states and signed by 10 more, including the European Union.
However, at that time, people were not travelling to Afghanistan to train in terrorist camps and were not travelling to Syria to do what they mistakenly see as jihad.
To address this phenomenon, in 2015 we adopted an Additional Protocol to the convention, which criminalises receipt of training for terrorism, travelling abroad for the purposes of terrorism and funding, and organising or facilitating such travel.
The protocol also criminalises participating in an association for the purpose of terrorism.
Most importantly, the Additional Protocol established a 24/7 network for exchange of police information about travelling foreign terrorist fighters.
It serves mostly to facilitate the follow-up returning foreign terrorist fighters and prevent them from committing terrorist offences at home.
With 41 members, the Protocol is a significant success.
Agreeing legally binding international treaties takes time.
But in matters of counterterrorism, international law must move forward to tackle the terrorist chimera.
So yes, the legal framework is vital.
But so too is having the enforcement mechanisms that turn theory into reality.
Police are the first respondents to many of the crimes that threaten democratic security.
This is a difficult challenge.
There are understandable concerns about the need to take action, while keeping in mind concerns that this could involve accusations of human rights violations, or allegations of xenophobic or racial bias.
And, as I said at the beginning, modern policing must conform to human rights standards.
Again, we should look to the rule of law.
Historically, this was meant to constrain those in power – “rulers must be kept within their due bounds”.
Today, the challenge is to apply the rule of law equally to everybody, regardless of social or economic status, race or belief.
Good police work is always specific – to the public, to the neighbourhood, to the circumstance.
There are no one-size-fits-all solutions.
That’s why, compared to other sectors, we have much fewer standard-setting instruments for human-rights based police work.
But we do have the European Code of Police Ethics.
The Convention and the Committee for the Prevention of Torture standards apply to detention in police custody.
And independent review systems are among the best tools to uphold the rule of law where it comes to police action.
So there are frameworks and, by extension, the ability to co-operate and learn.
This is true for Council of Europe member states as much as anyone.
The Human Rights Commissioner seeks of course to promote the independent determination of police complaints, which is a good thing.
But the Council of Europe has also been addressing the lack of effective investigations into allegations of ill-treatment by way of co-operation programmes.
We began this in Eastern partnership countries in 2009, resulting in amendments to national legislation to fight impunity for abuses committed by law-enforcement agents.
Also, since December 2015, we have been encouraging and advising the authorities of “the former Yugoslav Republic of Macedonia” on establishing an External Oversight Mechanism over police work.
Like all administrative action, police work must be subject to judicial review.
So I am in favour of the Council of Europe promoting discussion and exchange of good police practice as a means to improving respect for human rights while combating serious crime – including terrorism.
Terrorism must be tackled and human rights must be maintained.
It can only be sensible to work together and support flexible, real-time co-operation between practitioners to meet those vital ends.
So we are very pleased to host the 3rd IPCAN conference.
I wish you every success and look forward to working closely with you in future.
22 December 2017
Letter to the President of Romania, Klaus Iohannis